Mohd. Bashi vs State and Others

V.K. Shali, J.—This is an appeal filed by the appellant u/s 299 of the Indian Succession Act against the order dated 8.2.2012 by virtue of which the learned District Judge, North, dismissed the probate petition bearing No. 115/2008 filed by the appellant for lack of evidence to have proved the Will dated 24.5.2001 to be last and final Will of the deceased/testatrix Akhtari Begum. I have heard the learned counsel for the appellant. The only contention of the learned counsel for the appellant for entertaining this appeal has been that the appellant be given one opportunity to produce the attesting witnesses.

Briefly stated the facts of the case are that the present appellant filed a petition u/s 276 of the Indian Succession Act seeking probate/Letters of Administration in respect of the Will dated 24.5.2001 purported to have been made by one Mst. Akhtari Begum (since deceased/testatrix). In the Will it was allegedly stated that the land measuring 39 bighas 13 biswas bearing khasra Nos. 487/439/53/1, 487/439/1/1 and 487/439/53/1/2 situated in the area of village Sheikh Sarai, Tehsil Mehrauli, New Delhi was bequeathed by her in favour of the appellant. The appellant had claimed to have purchased the said land on the basis of the agreement to sell, receipt, affidavit, general power of attorney, etc. and further got the Will in question executed in his favour. It was alleged in the probate petition that in the month of June, 2008, the appellant had applied before the Tehsildar, Sub-Division Mehrauli for mutation of his name in the revenue record on the basis of the said documents along with ''no objection'' whereas the mutation was resisted by respondent No. 2, the son of the testatrix. It was also alleged that respondent No. 2, the son of the testatrix had also entered into an agreement to sell with the appellant herein on 28.12.2006. The case of the appellant was that the testatrix had died after making the Will which was objected to by the sons of the testatrix.

On the pleadings of the parties, following issues were framed:-

(i) Whether the Will dated 24.5.2001 propounded by the petitioner is the last Will and testament of deceased Smt. Akhtari Begum and was executed by her in sound disposing state of mind? OPP

(ii) Whether the petitioner is entitled to the grant of probate/letters of Administration to the Will dated 25.5.2011? OPP

(iii) Relief.

The appellant in support of his case, examined PW-1, Vijay Kumar Rawat, UDC, Sub-Registrar IV, Seelampur, Nand Nagri. Despite sufficient opportunities having been given, the appellant did not produce any other evidence. No attesting witness has been examined which is one of the essential requirements of proving a Will in case the attesting witnesses are alive. The learned trial court after giving sufficient number of opportunities closed the evidence and decided all the issues against the appellant and dismissed the probate petition (PC-115/2008) on 8.2.2012.

As stated above, the learned counsel for the appellant had only contended before this court that one more opportunity be given for the purpose of proving the Will. Along with the appeal, the appellant has filed copies of the order sheets which were passed by the trial court from time to time. A perusal of the order sheets shows that issues were framed on 28.7.2009 and the matter was adjourned to 29.9.2009 for the purpose of recording of evidence when statement of one witness PW-1, Vijay Kumar Rawat, was recorded. The matter was further adjourned to 20.11.2009 when no witness was present. Adjournment was sought by the counsel for the appellant on the ground that the appellant, Mohd. Bashi, is not well. The matter was again adjourned to 19.1.2010. On the said date also, no witness was present and adjournment was prayed for. The matter was further adjourned to 9.3.2010 and the appellant was directed to supply a copy of evidence by way of affidavit in advance at least seven days before the next date of hearing to the learned counsel for the objector/respondent. On 9.3.2010, no witness was present, no affidavit was filed and once again adjournment was requested and the matter was adjourned to 5.5.2010. Finally on 21.1.2011 on which date the matter was listed, it did not proceed further as no witness was present again and the trial court, in the interest of justice, gave one more opportunity for adducing appellant''s evidence for 21.3.2011 but this was subject to his payment of cost of Rs. 2,000/-.

On 21.3.2011, although the cost of Rs. 2,000/- was paid but there was again no witness despite keeping the matter pending till 3 p.m. No steps were taken to summon any witness as process fee was not filed. In the larger interest of justice, the court was over-indulgent and granted one more opportunity to complete his evidence after imposing a cost of Rs. 5,000/-. The matter was adjourned to 24.5.2011. On 24.5.2011, the matter was called. The nephew of the appellant had appeared who wanted the matter to be passed over and the matter was fixed at 12:30 p.m. At 12:30 p.m., no body appeared and finally at 2:40 p.m., the court was constrained to pass an order for closure of evidence as no witness was either produced or summoned. The probate petition was thereafter dismissed by the impugned order.

A perusal of the aforesaid order sheets clearly show that sufficient number of opportunities had been granted to the appellant to adduce evidence. One of the requirement of proving the Will as is envisaged u/s 63 of the Indian Succession Act read with Section 68 of the Evidence Act clearly lays down that if both the attesting witnesses are alive at least one of the attesting witness has to testify.

In the instant case, no effort ever seems to have been made by the appellant to produce any attesting witness in order to discharge the onus of proving the Will. The appellant seems to be taking it too casually and the court also being over indulgent had given undue latitude to the appellant to adduce evidence when it ought to have been closed after giving one or two opportunities at best. I am not at all convinced by the justification of non-production of evidence given by the appellant before the trial court despite sufficient number of opportunities having been given. As a matter of fact by this over indulgent attitude of the courts below in granting adjournments liberally, the courts are today inundated with cases which ought to be dealt with expeditiously. This is one such case where the probate petition has been pending since 2009 till middle of 2012 when it was dismissed for want of evidence. I am not at all inclined to condone such negligent behaviour on the part of the litigant. I do not find any merit in the appeal and the same is dismissed.